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Detention Litigation

IDP provides expert advice and support on detention-related litigation to ensure that all immigrants receive due process in matters of detention. IDP’s ongoing work includes support for habeas corpus petitions and other detention-related federal litigation, bond litigation before immigration courts, and related parole negotiations with administrative agencies.

Issues on which IDP has provided briefing and litigation support include, but are not limited to, prolonged mandatory detention based on previous criminal convictions or classification as an arriving alien, detention pending a final order of removal where actual removal is not reasonably foreseeable, procedures at administrative custody hearings or reviews that are unconstitutional or unauthorized by statute, detention of immigrants whose cases are administratively closed, and mandatory detention initiated at times other than when released from criminal incarceration.

IDP also offers amicus support and briefing on detention-related issues before appellate courts.

Attorneys and pro se litigants are encouraged to contact Anthony Enriquez via the form below for consulting, drafting, and technical support for detention-related litigation.

Model briefing

Below are model litigation papers for challenging detention at the Board of Immigration Appeals and in federal district courts. These papers require adaptation for the factual specifics of an individual case.

Mandatory detention of “arriving aliens” under Immigration and Nationality Act § 235(b), 8 U.S.C. § 1225(b)

Noncitizens charged as inadmissible “arriving aliens” include asylum seekers, certain lawful permanent residents (some with prior criminal convictions) seeking reentry into the United States after a trip abroad, and first-time entrants to the United States who lack documentation. In many cases, their detention pending removal proceedings may be challenged as unlawful by habeas corpus in a federal district court.

The below habeas petitions include circuit-specific law. They request immediate release or a bond hearing before a neutral arbiter. The petitions argue that (1) prolonged mandatory detention under § 1225(b) is unconstitutional or otherwise unlawful and that (2) § 1225(b) detention is limited to the period before a notice to appear in removal proceedings is served. They are therefore appropriate to file both prior to and after six months of detention under § 1225(b) have elapsed. Some of the petitions are accompanied by circuit-specific motions for a preliminary injunction preventing the government from further detaining without a bond hearing.

Appeals of custody determinations to the Board of Immigration Appeals

The below briefing argues that an immigration judge’s decision to release on bond should be upheld. It should only be used if the government files an appeal of the immigration judge’s release decision.

Key Supreme Court Detention Cases Supported by IDP as Amicus Curiae

Jennings v. Rodriguez, 136 S. Ct. 2489, 195 L. Ed. 2d 821 (2016)

This case, currently pending before the Supreme Court, challenges the legality of several of the government’s immigration detention practices. Such practices include prolonged mandatory detention of asylum seekers, certain lawful permanent residents denied admission upon their return from a trip abroad, and noncitizens charged as removable due to certain criminal convictions. It asks that the government grant periodic bond hearings to noncitizens in mandatory detention for longer than six months, at which hearings the government bear the burden of justifying continued detention by clear and convincing evidence and the immigration court consider the overall length of detention and alternatives to incarceration that could mitigate flight risk.

IDP and allies filed two amicus briefs in support of the petitioners, describing the harmful effects of prolonged detention on detained noncitizens, their families and communities, and the immigration system as a whole.

Key U.S. Court of Appeals Detention Cases Supported by IDP as Amicus Curiae

First Circuit

Castaneda v. Souza et al. & Gordon et al. v. Holder et al., 810 F.3d 15 (1st Cir. 2015) (en banc)

In these companion cases, the First Circuit held that for an immigrant to be held in civil immigration detention on the basis of a criminal conviction,  the immigration agency must have taken that person into custody at the time of release from criminal custody. Otherwise, the immigrant is entitled to a bond hearing before an Immigration Judge. IDP and allies filed amicus briefs in support of these petitioners, discussing the legislative history of the mandatory detention laws and presenting the stories of individual immigrants impacted by the government’s detention policies.

Second Circuit

Lora v. Shanahan, 804 F.3d 601 (2d Cir. Oct. 28, 2015)

Mr. Lora, a longtime lawful permanent resident, challenged the government’s authority to detain him without a bond hearing. He challenged the prolonged length of his detention, and also that he was detained due to a criminal conviction that was old and for which he received no sentence of incarceration. IDP and allies filed an amicus brief in support of Mr. Lora presenting the stories of other immigrants impacted by the government’s detention policies. The Second Circuit ruled in Mr. Lora’s favor by establishing a bright-line rule that any immigrant detained on the basis of a criminal conviction must be given a bond hearing within six months of the start of detention. The Court ruled that at the bond hearing the government bears the burden of proving the individual presents a risk of flight or danger to the community. Additionally, the Court arguably rejected Mr. Lora’s arguments based on “released” and “when released” theories.

Third Circuit

Sylvain v. Atty Gen, 714 F.3d 150 (3d Cir. 2013)

This case challenged the applicability of the mandatory detention statute where there is no regard for the length of time that has passed since criminal custody ended. IDP and allies filed an amicus brief in support of the immigrant’s petition for rehearing en banc.

Desrosiers v. Hendricks, 532 Fed.Appx. 283 (3d Cir. 2013)

This case challenged the applicability of the mandatory detention statute where there is no regard for the length of time that has passed since criminal custody ended, and where there was never any criminal sentence to incarceration. IDP and allies filed an amicus brief presenting the stories of individual immigrants impacted by the government’s detention policies.

Fourth Circuit

Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012)

This case challenged the applicability of the mandatory detention statute where there is no regard for the length of time that has passed since criminal custody ended, and where there was never any criminal sentence to incarceration. IDP and allies filed an amicus brief presenting the stories of individual immigrants impacted by the government’s detention policies.

Ninth Circuit

Khoury et al. v. Asher et al., No. 14-35482 (pending)

In this case, immigrants are challenging the applicability of the mandatory detention statute 1) where there is no regard for the length of time that has passed since criminal custody ended, 2) where there was never any criminal sentence to incarceration, and 3) where detention has become unconstitutionally prolonged. IDP and allies filed an amicus brief in support of these petitioners presenting the stories of individual immigrants impacted by the government’s detention policies.

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